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Jayachamarajendra Co-operative Society Ltd. Vs. Madaiah and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 317 and 318 of 1948-49
Judge
Reported inAIR1951Kant9; AIR1951Mys9
ActsMysore Co-operative Societies Act, 1948 - Sections 53, 60, 60(1) and 60(2)
AppellantJayachamarajendra Co-operative Society Ltd.
RespondentMadaiah and anr.
Appellant AdvocateY.M.C. Sharma, Adv.
Respondent AdvocateE. Kanakasabapathy, Adv. for Respondent 2
DispositionRevision dismissed
Excerpt:
.....the difference between the incidence of the provisions of the limitation act to suits and to applications is made clear also by the separate references made to them in section 3 of the act and in other sections for instance like 4 to 7 and 12 where reference is made both to suits and applications and section 13 under which in computing the period of limitation prescribed for a suit, the time during which the defendant has been absent from mysore shall be excluded. these revision petitions fail and are dismissed with costs......applicable are now double those prescribed in the second column of schedule 1 annexed to the mysore limitation act, 1911. he argues that a 'dispute or suit' includes an execution application and that therefore the period for making an execution application being now 6 years, the present execution applications are within time.3. there can be no doubt that according to the decision in 17 mis. l. j. 342 the present applications would be barred by limitation as having been brought more than 3 years from the date when the right to apply accrued, i. e. the date of the certificate of the registrar under section 43, (c) of act vii [7] of 1918, the mysore co-operative societies act, corresponding to section 53 of the present act. it is, therefore, necessary to consider whether the present.....
Judgment:
ORDER

Vasudevamurthy, J.

1. These two revision petitions have been filed against the order of the Additional Subordinate Judge of Mysore in Execution cases, Nos. 840 and 1216 of 1947-48 on his file. Sri Jayachamarajendra Co-operative Society Ltd., Mysore, filed those applications on 10th November 1947 to recover amounts due to it under the decisions passed on 3rd December 1935 by the Assistant Registrar of Co-operative Societies in disputes Nos. 1314/34-35 and 754/33-34. The two previous execution applications made to the civil court, obviously on certificates by the Registrar before taking out execution proceedings in the civil Court, were dismissed in the year 1942. The learned Subordinate Judge held that the applications were barred by limitation. Hence these revision petitions.

2. The present execution applications are prima facie barred by limitation. Mr. Y. M. C. Sharma who appears for the decree-holder-Society contends that the applications are within time by virtue of Section 60, Mysore Co-operative Societies' Act LII [52] of 1948, as under Section 60, Sub-section (2), in any dispute or suit of the description mentioned in Sub-section (1) of Section 52, i. e. a dispute touching the business of a registered society, the periods of limitation applicable are now double those prescribed in the second column of Schedule 1 annexed to the Mysore Limitation Act, 1911. He argues that a 'dispute or suit' includes an execution application and that therefore the period for making an execution application being now 6 years, the present execution applications are within time.

3. There can be no doubt that according to the decision in 17 Mis. L. J. 342 the present applications would be barred by limitation as having been brought more than 3 years from the date when the right to apply accrued, i. e. the date of the certificate of the Registrar under Section 43, (c) of Act VII [7] of 1918, the Mysore Co-operative Societies Act, corresponding to Section 53 of the present Act. It is, therefore, necessary to consider whether the present Co-operative Societies Act has made any difference in this matter. Section 60, Clause (1) provides that subject to the provisions of the next succeeding sub-sections of that section, the provisions of the Mysore Limitation Act of 1911 so far as they relate to suits, appeals and applications shall, so far as may be, apply to disputes, suits, appeals, or applications instituted, preferred or made under that Act. The difference in the wording of Section 60 Clause (1) and Clause (2) is very significant. Appeals and applications are omitted in Sub-clause (2). Execution and other applications would therefore be governed by Section 60, Clause (1) and not Clause (2). Even in Section 60, Clause (5) the saving provision is made applicable only to any dispute or suit for which the period of limitation prescribed by Section 60 has expired prior to the date of the commencement of the Act or expires within six months next after that date; and in the explanation to that section a dispute has been stated to be deemed to be a suit. The difference between disputes and suite and appeals and applications is therefore clearly evident throughout that section.

4. Mr. Sharma contends that a suit has not been denned in the Civil Procedure Code and that it would include all proceedings of a civil nature. For this position he relies upon two decisions. The first of them is a case reported in Hurro chunder Roy v. Sooradhonee Debia, Beng. L. R. Sup. Vol. 985; (9 W.R. 402 F. B.). In that case it was held that certain previous proceedings taken in a former suit for the determination of mesne profits were proceedings of a civil nature, the period occupied by which could be deducted in computing the period of limitation applicable to the subsequent suit though the earlier proceedings were taken in a Court which had no jurisdiction. It was, therefore, a case falling under the principle of Section 14, Limitation Act, XIV [14] of 1859 Though there are certain observations in the judgment of Peacock C. J., in that case to the effect that a suit does not necessarily mean an action and that any proceeding in a Court of Justice to enforce a demand is a suit, the real point for decision in that case was whether the steps taken on the execution side in the previous proceedings could be deemed to be proceedings falling within Section 14, Limitation Act to save limitation. It does not decide that a suit means an execution application or vice versa. The second case on which Mr. Sharma relies is Mahalinga Kudumban v. Theetkarappa Mudaliar, 1929 M. W. N. 62: (A. I. R. (16) 1929 Mad. 223), in which the above case has been referred to. It was held in that case that an order under the Land Acquisition Act awarding compensation to one of the claimants was a decision against which an appeal lies and this was apart from the question whether the award amounts to a decree in a suit or not. Though the words 'suit' and 'suitor' may sometimes be applied to any contentious proceeding in a Civil Court and to a party who approaches the Court for its determination, I do not think in view of the express provisions of Section 60, Co-operative Societies' Act, it can be said that there is no difference for the purpose of applying the Limitation Act between a dispute or a suit on the one side and an appeal or an application which are differently dealt with in different portions of that section as pointed out above.

5. Moreover, the matter is farther placed beyond all doubt by the definition of 'suit' in Section 2 Sub-clause (10), Mysore Limitation Act, where a suit has been defined as 'not including an appeal or an application.' The difference between the incidence of the provisions of the Limitation Act to suits and to applications is made clear also by the separate references made to them in Section 3 of the Act and in other sections for instance like 4 to 7 and 12 where reference is made both to suits and applications and Section 13 under which in computing the period of limitation prescribed for a suit, the time during which the defendant has been absent from Mysore shall be excluded. While considering a similar provision under the Indian Limitation Act, it has been held that the time daring which the defendant has been absent from India shall not be excluded in the case of execution proceedings, See Ahsan Khan v. Ganga Ram. 3 ALL. 185 and Badal v. Chhattar Singh, 68 I. C. 205 at p. 207: (A. I. R. (9) 1922 Oudh 131). In Schedule 1, referred to in Section 3, Limitation Act separate provision is made for suits, appeals and applications under the 1st, 2nd and 3rd Divisions respectively.

6. The decision of the learned Subordinate Judge is, therefore, correct. These revision petitions fail and are dismissed with costs. (Advocate's fee Rs. 10 in each case).


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